Making Sense of It All

“All it takes is a troubled kid with access to guns. You don’t have to go to an inner city to find someone who meets that criteria. You only have to open your eyes. The next likely candidate might be upstairs, or sprawled in front of your TV right now. But hey, you just go right on pretending it won’t happen here. Tell yourself that you’re immune because of where you live or who you are. It’s easier that way, isn’t it?” (Peter’s note, p.333)

The scales of justice do not apply to Jodi Picoult's writing style, that is a fact. The previous twenty percent of my reading included little to no mentions of law or justice, yet this section is filled to the brim with interesting thoughts, theories, insights, and practices of law and justice. The story is, as previously mentioned, told in a non-linear fashion, but for the purpose of my entry I will attempt to put the pieces in order.

First, a flashback to a month before the shooting when Peter steals the two 9-millimeter semiautomatic Glock 17s he would use to shoot and kill his classmates from his neighbor, Mr. Weatherhall’s, kitchen. Mr. Weatherhall, a retired cop, is not guilty of aiding in Houghton’s manslaughter because he is also a victim. Also in this section are Josie’s pregnancy concerns, three positive pregnancy tests, and the purposeful miscarriage of her three week old fetus. Her now-deceased boyfriend, Matt, was aware of Josie’s pregnancy and figured that Josie could never get rid of him if they had a baby together. Thus, Josie’s already complicated feelings of loss because of the miscarriage were only compounded by the events of the school shooting and Matt’s death. Her inability to cope with her situation is much more understandable now and Josie seems less like a love-obsessed teenage girl and more like a human being because of it.

Five months after the shooting Peter is held in maximum security, awaiting his trial. An extreme measure for a juvenile, but legally supported by Schall v. Martin (1984). His father, Lewis Houghton, has still not visited his son after five months in jail. Instead, he spends his time at the cemetery where the ten victims are buried and lays a pink rose on each of their graves. Lewis feels guilty for encouraging Peter’s hunting habits and wonders if something he said made Peter kill these innocent people. His wife Lacy considers how her lack of acceptance and her relentless comparison of her sons may have led Peter astray. When Lacy explains to her husband that Peter needs them more than ever, not the victims, Lewis responds, “I can’t go to see Peter. … I still think, every day, of the drunk who crashed into Joey’s car. I think about of how much I wished he’d died instead of Joey; how he deserved to die. The parents of every one of these kids is thinking the same thing about Peter. And Lacy…I don’t blame a single one of them.” (p.286) This conflict between Peter’s parents is an example of Benard’s pendulum swing in motion; Lacy and Lewis are on opposite ends of the pendulum when it concerns the consequences of their son’s actions. This is also an example of how crime affects a community.

Peter’s trial process has been very similar to that of an adult offender, thanks to all the reform within the Juvenile Justice system. This is a bit confusing though, because Houghton’s status is not actually mentioned in or outside the court. However, I would venture to assume that Houghton is being tried as a juvenile offender, even though he is given a trial by jury. This could be at the request of Houghton's Defense Attorney, Jordan, and granted by the state willingly, instead of required by Peter's “adult status."

After Peter's arraignment, the prosecution motions to recuse Judge Cormier, Josie’s mom, because she is clearly too intimately involved in the case. Cormier immediately refuses to give the prosecution the hearing they strongly request because she knows that it will be a very public affair with the victims, victim’s families, and the media all present, but, thinking of what this situation would do to her career, Alex concedes and will allow the prosecution to voice their positions. Detective Patrick Ducharme, speaking from his personal experience with a similar situation, supports the Judge's decision because, “when you love someone, no matter what you tell yourself, it stops being a job. [It’s] Revenge.” (p.284)

Jordan and his wife/assistant Defense Attorney, Selena, watch the Judge Cormier's hearing on TV and realize that because the prosecution is not using Josie as a witness (she cannot remember any of the events from the day of the shooting) they could use her as a character witness for the defense. An earlier interview with Peter’s close friend, Derek, revealed a previously unknown “friendship gone awry” between Josie Cormier, the judge’s daughter, and Peter Houghton, the defendant. If Josie would admit the true nature of her and Peter’s relationship, Jordan could prove that Peter had been a victim of unnaturally harsh treatment at the hands of his peers for years leading up to the shooting. Besides, just by having Josie on the Defense Witness list, Judge Cormier would have to step down and Cormier’s connection to the case put their entire defense at risk, not to mention the entire case, in jeopardy.

A month before the trial begins, Jordan is still trying to compile some king of defense for Peter. He brings in a psychiatrist named King Wah to interview Peter. When Wah returns from Peter’s jail cell, he has a solid defense plan in place: “bullied victim syndrome.” The plan is to compare Peter’s situation to that of Katie Riccobono, the poster child for battered woman syndrome. Wah’s theory is that the treatment of a victim of bullying over time is not significantly different than that of an adult female in battered woman syndrome. “A jury’s not made up of battered women, but they’ve been known to acquit them before. On the other hand, every single member of that jury will have been through high school.” Wah explains. “The common denominator is being humiliated. …and painful or embarrassing memories stick like glue.” (p.288)

As Jordan, the prosecuting attorney, and the recently appointed Judge Wagner pick the jury during voir dire, Jordan asks each potential juror a set-up question which will tell him whether or not a juror will be open minded and follow new regulations, such as “bullied victim syndrome” or not. This plan of attack plays an immense role in Jordan’s opening arguments during the trial; “For example, when most people hear the word self-defense, they assume it means that someone is holding up a gun, or a knife to the throat—that there’s an immediate physical threat. But in this case, self-defense may not mean what you think. And what the evidence will show, ladies and gentlemen, is that the person who walked into Sterling High and fired all those shots was not a premeditated, cold-blooded killer, as the prosecution wants you to believe. He was a very scared boy who asked for protection…and never received it.” (p.364)

Six months after the shooting, Houghton’s trial begins. One heckler, standing amidst the crowd of media, on-lookers, and angry victims in front of the courthouse, holds a sign stating, “There’s still a death penalty in NH.” (p.360) While this statement is true, Peter Houghton is a minor and, according to the findings of Roper v. Simmons (2005), the death penalty is unconstitutional if imposed on a minor because if is considered cruel and unusual punishment and violates the Eighth Amendment.

Because we are studying Black’s styles of social control, I could not help but wonder what each of those styles would look like for this situation. The penal style, considering Peter’s youth and the findings of the Supreme Court in Roper v. Simmons, would sentence him to life in jail with no chance of parole. However, the jury must be convinced that Peter was of a rational mind and engaged in a cost-benefit analysis of his actions, which, depending on witnesses and confessions I have not heard yet, may prove difficult or simple to achieve. On the other end of the spectrum, I believe the Therapeutic style would then sentence Peter to a mental health facility until he is better. Taking into account Jordan’s “bullied victim syndrome” this could potentially be similar to the sentencing verdict of the case in Nineteen Minutes.

The Conciliatory and Compensatory styles, however, run into difficulties under these circumstances. What is “a fair and reasonable solution to the problem” of killing ten innocent people and attempting to kill eighteen more? How does one “restore social harmony” after the atrocious acts of a school shooting? I am not convinced that these two styles of social control apply to the situation at hand and, as a victim or surviving family member of a victim, I would be taken aback if anyone attempted to apply any “remedies” to my situation.

Then what about Restorative Justice, what would that look like for this situation? The surviving victims’ lives have all been altered severely. Most will be handicapped for the rest of their lives and others just long enough to not earn the athletic scholarships they depended on to go to school. The community at large has been heavily impacted by these events, and certainly Peter has issues to work out. Only, how do you satisfy the victims that will never get to walk where they once ran? How do you restore justice to the same or a better place than before the crime” for a dead victim’s family? As Josie states on page 276, “You don’t understand. None of you understand. The people who do, they’re all dead.”

This section of my reading ends after the opening statements from the prosecution and defense at Peter's trial. Hopefully that means there is more good stuff still to come!

No Shirt. No Shoes. No Service.

• SOCIAL CONTROL: any action, either deliberate or unconscious, that influences conduct toward conformity, whether or not the persons being influenced are aware of the process.

Few thoughts make me shudder more than those associated with “social control.” First of all, the need for protection from the grievous misdeeds of other, by means of social control, imposes a collage of humanity gone grossly awry on my mind. (An unpleasant thought process, I assure you.) Secondly, the idea—no, the factual history—of social control being abhorrently misused and abused by those with the power to inflict social control scares me absolutely senseless. Thirdly, the general idea of forcing conformity on society just pokes and prods at my inner rebellion and reminds me that, while I may still be merely part of the machine, I am quite proudly a squeaky cog. So, while stigmas are hard to set down, I set most of those issues aside because this chapter is in fact very interesting to me. Cringe and shudder as I may, the issues brought up in this section are a perfect blend of tangible reality and hypothetical circumstance. Therefore, I suffer through these scary conceptions in the hopes that I may better understand the society around me.

Page 212 of the textbook suggests that society is dependent upon peaceful and predictable coexistence, which is only possible when enforced by social control. According to this theory, social control could then also be defined as “a mechanism intended to influence people within a society to conform to the behavioral expectations of the group.” The two dichotomies established by legal sociologist Donald Black create four types of social control mechanisms: direct formal, direct informal, indirect formal, or indirect informal. Some examples of Formal Direct social control would be an arrest, incarceration, a lawsuit, and a trial and sentencing by an agent of the state. Informal Direct social control could be hate crimes, gang activity, a Homeowners' Association, and social shame. Formal Indirect would be the threat of legal sanctions due to knowledge of or witnessing the punishment of a crime, and Informal Indirect could be reinforced by viewing and participating in the trial experience.

Black also identified penal, therapeutic, compensatory, and conciliatory as four legal styles of social control. Personally, I adhere to a philosophy most akin to the theory of Restorative Justice. I trust that when individuals break the natural balance of justice, by choice, circumstances, and/or biology, it should be corrected and bettered if possible. Three parties are wronged by a crime, according to Restorative Justice: the victim, the community, and the criminal. In order for this theory to be applied, ALL parties must be restored to the same, if not better, level of justice as before the crime. I appreciate this legal style because it allows for the rehabilitation of the victim, of the criminal, and of the offended community, as well as punishment for the crime. These instances being so, each case is forced to be viewed individually for the most part because with each case, each party will be wronged to varying degrees and in differing manners; this allows for more accurate sentencing and justice.

For more information on Restorative Justice please visit http://www.restorativejustice.org/?Prison-Ministries.info.

Rehabilitation is essential if the court wishes to successfully change the behaviors of a criminal. The idea of punishing “the effect,” with the intent of deterring others from similar actions, without even acknowledging “the cause” seems futile to me. Deterrence applies to very few people to begin with. Only individuals of RATIONAL minds and who utilize “cost –benefit” analysis for the crime can possibly be deterred. Within my own experience, this scare tactic applies only to those individuals in the position to lose much more than the average citizen and those with moral compasses glued to due north. I know that most of the rebellious youth of my hometown will continue in their delinquency, whether their friends are in “Juvi” or not, and that most of the law-offending adults will remain just as vigilant in their illegal diversions, whether part or all of their family has been incarcerated or not.

I found the statistics on plea bargaining interesting, but not necessarily shocking. Ninety percent of all felony suspects agree to a guilty plea in exchange for… well that depends. I want inside the minds of these felony suspects. How many are guilty right off and save their skin, and would rather confess than try to cover their tracks? How many were in the wrong place at the wrong time and plead guilty to a false charge merely to escape a “fate worse than death?” And how many criminals make up the remaining ten percent that fight their fights. How many come away unscathed despite their guilt? How many are sentenced to their just terms? How many their unjust terms? And what will become of these men once we have “disposed” of them? And just how many of those instances involved capital punishment, I wonder?! To properly explain my feelings about capital punishment I would just have to say that I agree with every argument the text mentions against it.

To wrap things up, I would be amiss not to mention The Patriot Act. Raised in a true blue Midwestern home I spent my entire childhood listening to my parents and grandparents echo remarks akin to Benjamin Franklin’s, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” After 9/11 my family was grievously distraught and yearned for some call to action. A month later, The Patriot Act is passed and our national “call to action” is one of inaction, ignorance, and consumerism. So, for starters, my mom, as an employee of the Danville Public Library, rallied against The Patriot Act, which would require access to all the public library records of books that an individual checks out. The library no longer keeps those records just so that the government cannot stick its head where its nose should not be. This has been most inconvenient to the customers and use of the library has decreased dramatically since the no-record implementation. To continue my woes, I fly to and from campus at the semester breaks. I do not think we need yet another reminder of just how tight and unfair the security systems at international airports are today.

Shudders and cringes aside, I ultimately understand the need for some social control, but I still fear the possibilities presented by its misuse and abhor its track record of abuse.

Trials and Tribulations

Jodi Picoult's Nineteen Minutes relates to Law and Justice through the eyes of Judge Alex Cormier first in this next section. She is fatigued by the trivial case she is trying and wonders aloud to the police prosecutor why "the taxpayers of New Hampshire (are) shelling out money for a case like this to be tried." I completely agree with Cormier's attitude towards this particular situation and will share with you the circumstances of the afore mentioned case:

"The two men standing in front of Alex's bench shared a duplex, but hated each other. Arliss Undergroot was a Sheetrock installer with tattoes up and down both arms, a shaved head, and enough piercings in his head to have set off the metal detectors at the courthouse. Rodney Eakes was a vegan bank teller with a prized record collection of original cast recordings fro Broadway shows. Arliss lived downstairs, Rodney lived upstairs. A few months back, Rodney had brought home a bale of hay, planning to use it for mulching his organic garden, but he never got around to it and the hay bale remained on Arliss's proch. Arliss asked Rodney to get rid of the hay, but Rodney hadn't moved fast enough. So one night, Arliss and his girlfriend cut the twine and spread the hay out over the front lawn."

Rodney called the police and they had actually arrested Arliss on the grounds of criminal mischief: legalspeak for destroying a bale of hay. The police prosecutor had already proved that Arliss had taken the bale of hay and spread it over the lawn, so the burden of proof was fulfilled. However, Cormier pities Arliss's situation: if convicted he would have a criminal record. So she instead asks the prosecutor how much the victim paid for the bale of hay. Ultimately, Arliss payed for the four dollar bale of hay and a fifteen-minute recess was called.

The rest of this section of reading focuses around Josie struggling with her grief as she returns to school, Cormier's incessant worrying about Josie when she's at school, and a flash back to the year before the shooting when Josie and Peter got along as coworkers in an office supply store, not law and justice. Better luck next time.

Details, Details.

Criminal procedure law attempts to find balance between the individual’s rights protected by the Due Process model and the justice that is served by the Crime Control model. The reality of this idealistic and impossible goal all comes down to the details of definitions and specific instances, as Chapter Six: Criminal Procedure clearly explains.

Laws for criminal procedure are founded upon the Bill of Rights, state constitutions, federal and state statutes, and the 4^th, 5^th, 6^th, 8^th, and 14^th Amendments and have been haphazardly established by the Supreme Court on a case-by-case basis.

The 4^th Amendment in particular led to the creation of the warrant and reasonableness clauses, which state that all warrants must be based on “probable cause” and must specifically define the person or place to be searched. Probable cause exists when “the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed” (Brinegar v. United States 1949). The 4th Amendment, which protects against unreasonable searches and seizures, is also responsible for the "knock and announce" policy in the case of an arrest or search, with the exception of an immediate threat of serious harm to the officers or others (Tennessee v. Garner 1985).

Nineteen Minutes: Law and Justice in a Post-Columbine Culture

"If we don't change the direction we are headed, we will end up where we are going." --Chinese Proverb

Jodi Picoult's Nineteen Minutes is a story of the complexities unveiled by the events surrounding a school shooting. The novel is composed in time frames in accordance to the shooting, beginning with the day of the event, and then flashing back seventeen years, then flying forward to a few hours after the shooting, and so on. These time sequences are told from the points of view of up to six different characters, each revealing the multifaceted parameters of intent, revenge, justice, and guilt through their own thoughts and actions, and the actions of those around them.

The story begins on March 6, 2007 with Josie Cormier getting ready for school. Josie is the angst ridden teenage daughter of Superior Court Judge Alex Cormier, who is disillusioned with her pseudo-reality and has therefore been inconspicuously stealing sleeping pills from her mother for months, just so that she can down them in a lethal dose of alcohol when her "friends" discover how different and unhappy she really is. Josie's character deals mostly with the emotional aspects of the shooting and its aftermath, like missing her murdered boyfriend to the point of debilitation and playing six degrees with the wounded, and not so much with justice or law.

Justice is portrayed in this story in many characters, however, including Alex Cormier, Josie's mother. She is the youngest and reportedly fairest Superior Court Judge in Grafton County, New Hampshire, and while she seems completely oblivious to Josie's dark musings, she does care for her daughter dearly. Unfortunately, her talents lie with the repeat offenders that wander through her courtroom, not making an emotional connection with her daughter.

Judge Cormier's friend and OB GYN, Lacy Houghton, is another character of justice in Nineteen Minutes. Lacy delivered Josie when Alex was still a lawyer, struggling to understand how she would mother a child when she could not even keep a house plant alive. Lacy is also the mother of Josie's childhood friend, Peter Houghton, who, through a long series of unfortunate events becomes the school shooter.

Before Peter Houghton was an outcast, he was expected to follow in his older brother Joey's shoes as a great high school athlete. Sadly, Joey's tragic death during his senior year only alienated Peter further. Until one day even his best friend Josie left him for the "in crowd" on a promise that she would make them stop picking on him. The bullying did not stop for Peter, however, and he became a time bomb.

The story opens with Peter's suicide note, but he was apprehended before he killed himself so the story continues on with the preparation for his trial. Lacy tries to buy milk at the store, and ultimately cannot because she sees a change tin for the victims of the shooting and listens to the cashier's blind accusations of, "It makes you wonder about the parents, you know?" Lacy's justice is far different from that of the victim's parents, but Lacy stays silent. She wants everyone to understand that she lost her child, her Peter, too--just a long time before. She feels that she is blamed for not keeping a closer eye on Peter, for not knowing what he planned to do. After Joey died, Lacy found heroin in his room, so her theory was that if she did not want to find anything she did not want to see, then she would not pry.

Detective Patrick Ducharme was the first officer in the high school during the shooting, and was the officer to apprehend Peter. The Detective's character deals with the aftermath of crime and procedural law. He is on his way to the crime lab to have some evidentiary cocaine processed when he heres the code 1000. Patrick was the one to find Josie, scratched, but otherwise unharmed, and remove her from the wreckage with noticing her dead boyfriend lying next to her. Detective Ducharme is the character who plays Peter's video game simulation of nerds creating weapons and killing all the jocks, bullies, and popular kids, which results in a massacre of a SWAT team. He also investigates the suicide of a victim's mother in a local gun shop could be argued as an indirect result of Peter's shootings, but would not likely hold up in court.

Peter spends most of his time in detention fighting the counsel of his Defense Attorney, Jordan. Jordan saves Peter from a probable cause hearing that would put his family under the microscope and most likely discover his mens rea. Apparently, Jordan has discovered an untested yet valid defense, but the reader is unaware of the details of this defense at this point.

The Alford Plea: Black, White, Grey, or Green?

A British defendant once protested, "As God, is my judge, I'm innocent." To which a jurist, Lord Birkett, responded, "He isn't. I am; you're not."

Of the five possible pleas of a defendant, guilty is by far the most common. Standing mute, or refusing to plea, and nolo contendere, or accepting guilty punishment but not admitting liability, are less common. The least common plea of all, then, would be the Alford plea.

It's controversial nature, and the fact that the acceptance of the Alford plea is left to the discretion of the court, both contribute to it's lowly status on the "popular plea totum pole."

The Alford plea originated from the Supreme Court case, North Carolina v. Alford (1970). The case notes that, "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime when a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt"

(http://definitions.uslegal.com/a/alford-plea/)

As mentioned in the text, judges are at odds with defendants who use the Alford plea for a couple of reasons. Firstly, the Alford plea allows defendants to maintain their innocence while accepting the reasonable possibility of guilt; however, in many courts, a defendant is expected to admit guilt on the record to be charged with the crime and given punishment. Secondly, and less profoundly, judges just plain-old don't like it.

I too wrestle with the idea of the Alford plea. On the one hand, I can see where the need for justice and the probability of guilt unfairly coincide with an innocent man's actions or behaviors, in which case a defendant who invokes the Alford plea is protected from admitting actual guilt and a more severe punishment. Conversely, I also understand the judge and jury's need for admitted liability before convicting a defendant of guilt. In this case, however, I lean more towards the former than the latter, mostly because I disagree on principle with the stark "guilty" or "not guilty" ideals with which the judge and jury tend to conform.

In this case, as in most, the shades of grey are most important in matters of black and white.

Stare Decisis: Hypocrisy or Justice?

My understanding of the concept "stare decisis," according to the text (p.55-58), is: future decisions bound to the governing of consistent prior decisions, or, more simply, precedent. Specifically, precedent is "the influence of prior cases on current cases;" moreover, stare decisis binds some judges and courts to "let the decision stand," just as it means in Latin.

I struggle with my opinion of stare decisis on both principle and practice.

I do agree that a judicial body should be able to alter or reverse a previous decision based on new information or circumstances. Note, though, that I do not commend making a practice of such changes as it would be highly harmful to the law and therefore society.

Conversely, my own sense of justice screams, "That's not fair!!" I have argued far too many times against the hypocrisy of double standards and unequal treatment to now become an advocate of such a weak, unbalanced, and irregular form of justice.

So where is the middle ground between such justice and hypocrisy? Should a decision made hundreds of years ago still be applied to cases today, despite the thousands of differences between the two worlds in which they were made? Should a just decision, under no circumstances, ever be threatened by reversal? How do we know when a practiced precedent is no longer just?

As usual, it all comes down to the details. Change is innate to human nature with the passing of time and should be accounted for in all aspects of law and justice. As our understanding of criminal motive develops, so should the sentencing for such criminals, while giving careful thought to the principles and ratio decendi for the original precedent. Even in a rapidly changing world, some decisions stand the test of time as true precedents for humanity.

I am still shaky on the details of the practice of stare decisis. I know, though, that there are cases in which I find it most effective and just, such as Brown v Board of Education and Wolf v. Colorado. On the other hand, I live in fear of such decisions as Hernandez v Texas and Roe v Wade being overruled at any time, near or far, in the future.

Overall, I have decided that I am a proponent of stare decisis and a fearer of its abuse. Long live hypocrisy, if only it serve justice.

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